The right to remain silent is still golden

Published: Tuesday, July 2, 2013 at 03:07 PM.

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak with me?”

Those words are uttered thousands of times a day in this country, and one hardly needs to have been arrested to recognize them. They are a staple of police dramas from “Dragnet” to “CSI.” They are a ubiquitous part of American culture, as familiar as the Pledge of Allegiance. They are, of course, the Miranda warning, which suspects have been read ever since the United States Supreme Court in 1966 mandated it.

Written by Chief Justice Earl Warren, who began his public career as a prosecutor, Miranda recognized the coercive nature of police interrogations and sought to ensure that the constitutional rights of suspects in custody were protected. Moreover, it was an expression of the court’s egalitarianism: Sophisticated suspects already knew to ask for a lawyer or to remain silent, so those who tended to incriminate themselves under police questioning were more likely to be poor and uneducated.

Since its inception, Miranda has stood as a hallmark of judicial overreach in the minds of conservatives. They like to note that the warning does not appear in the Constitution. And even though the rights it enumerates are explicitly mentioned — the right to remain silent is guaranteed by the 5th Amendment, the right to counsel is protected by the 6th — critics complained at the time of Miranda that informing suspects of those rights would cause them to clam up and thwart law enforcement. It would, the claim went, empty the prisons.

Well, it didn’t. Miranda is now nearly 50 years old, and the prisons are full of criminals who were convicted despite it. Some were read the warning and talked anyway; others got the warning, demanded lawyers and were convicted on the evidence. Indeed, one of the striking things about Miranda today is that the law enforcement establishment no longer objects to it. The warning is simple and easy for officers to deliver. It gives them clarity, and it rarely interferes with an investigation. When Miranda faced a direct challenge in 2000, Chief Justice William H. Rehnquist, who criticized the original ruling, voted to uphold it, in part because of that clarity and in part because it had become such an established piece of police practice.

Yet Miranda continues to agitate. Just last month, the Supreme Court upheld the conviction of a Texas man who was being questioned by police before his arrest but who then refused to answer when police asked whether shells from his gun would match those found at the scene of a homicide. Rather than respond, he looked at the floor, clenched his hands and bit his lip. Prosecutors told the jury those details, and Genevevo Salinas was convicted of murder. A divided court concluded that because it was his actions, not words, that were presented to the jury — and because the exchange occurred before his arrest — his Miranda rights were not violated even though he had not been issued the warning.

And it was just two months ago that the surviving brother of the two Boston bombing suspects was taken into custody, and conservatives loudly argued that he should somehow be treated differently from any other criminal suspect and denied a reading of his Miranda rights. The shoddy reasoning in that instance is that somehow terrorism is different — as if planting a bomb is a crime outside constitutional law while shooting a gun would not be. He was eventually read his rights and stopped talking, but no one seems to have much doubt about the strength of the evidence against him.

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak with me?”

Those words are uttered thousands of times a day in this country, and one hardly needs to have been arrested to recognize them. They are a staple of police dramas from “Dragnet” to “CSI.” They are a ubiquitous part of American culture, as familiar as the Pledge of Allegiance. They are, of course, the Miranda warning, which suspects have been read ever since the United States Supreme Court in 1966 mandated it.

Written by Chief Justice Earl Warren, who began his public career as a prosecutor, Miranda recognized the coercive nature of police interrogations and sought to ensure that the constitutional rights of suspects in custody were protected. Moreover, it was an expression of the court’s egalitarianism: Sophisticated suspects already knew to ask for a lawyer or to remain silent, so those who tended to incriminate themselves under police questioning were more likely to be poor and uneducated.

Since its inception, Miranda has stood as a hallmark of judicial overreach in the minds of conservatives. They like to note that the warning does not appear in the Constitution. And even though the rights it enumerates are explicitly mentioned — the right to remain silent is guaranteed by the 5th Amendment, the right to counsel is protected by the 6th — critics complained at the time of Miranda that informing suspects of those rights would cause them to clam up and thwart law enforcement. It would, the claim went, empty the prisons.

Well, it didn’t. Miranda is now nearly 50 years old, and the prisons are full of criminals who were convicted despite it. Some were read the warning and talked anyway; others got the warning, demanded lawyers and were convicted on the evidence. Indeed, one of the striking things about Miranda today is that the law enforcement establishment no longer objects to it. The warning is simple and easy for officers to deliver. It gives them clarity, and it rarely interferes with an investigation. When Miranda faced a direct challenge in 2000, Chief Justice William H. Rehnquist, who criticized the original ruling, voted to uphold it, in part because of that clarity and in part because it had become such an established piece of police practice.

Yet Miranda continues to agitate. Just last month, the Supreme Court upheld the conviction of a Texas man who was being questioned by police before his arrest but who then refused to answer when police asked whether shells from his gun would match those found at the scene of a homicide. Rather than respond, he looked at the floor, clenched his hands and bit his lip. Prosecutors told the jury those details, and Genevevo Salinas was convicted of murder. A divided court concluded that because it was his actions, not words, that were presented to the jury — and because the exchange occurred before his arrest — his Miranda rights were not violated even though he had not been issued the warning.

And it was just two months ago that the surviving brother of the two Boston bombing suspects was taken into custody, and conservatives loudly argued that he should somehow be treated differently from any other criminal suspect and denied a reading of his Miranda rights. The shoddy reasoning in that instance is that somehow terrorism is different — as if planting a bomb is a crime outside constitutional law while shooting a gun would not be. He was eventually read his rights and stopped talking, but no one seems to have much doubt about the strength of the evidence against him.

The strange state of Miranda as it approaches 50, then, is that it no longer poses the threat that police and others once feared it would, but it remains a source of political irritation to some. That’s hardly the only example of people putting ideology over common sense in today’s America. People would be wise to follow Rehnquist’s lead and acknowledge Miranda for what it is: an intelligent, workable doctrine that helps police and protects the rights of those in custody.